simonicity

London Stalling

This one is about the current position with London (non) development and some thoughts about what procedural steps may be open to you if you are a London (non) developer with a planning permission for a scheme that is no longer viable to build out.

On 14 October 2025, Molior published figures for Q3 2025 construction starts and sales in relation to schemes in London with 25+ homes for private sale or rent. Apologies for the extensive quoting but their summary is clearer than anything I can write:

“Between 2015 and 2020, there were 60-65,000 homes for private sale or rent under construction in London at any given time.

Today, that number has fallen to 40,000 … and 5,300 of those are halted part-built.

With a surge of completions expected in 2026, Molior forecasts that just 15-20,000 new homes will be actively under construction on 1st January 2027.”

“London had just 5,933 new home sales in Q1-Q3 2025.

Sales rates are weak across all local markets and at every price point.

At prices up to £600 psf – the level at which most London owner-occupiers can buy – sales to individuals are virtually non-existent.”

“Build-to-rent completions are about to plunge.

Interest rates rose during 2022, then the Liz Truss budget pushed them higher.

This stopped new money from funding London multifamily development.

Completions are set to disappear after 2027 because construction starts fell in 2023 / 2024.”

“There were 3,248 private starts in Q1-Q3 2025.

London is now on track for fewer than 5,000 private construction starts in 2025.”

“Starts have been falling for a decade because sales rates and profitability have been falling for a decade.

Building Safety Regulator delays have made things worse in 2025.”

“Development is unviable across half of London.

Development costs are high, so it is unviable to build profitably in half of London – areas under £650 psf.

This is even if the land is provided free and there are no planning obligations like CIL and affordable housing.”

“London has 281,000 unbuilt permissions.

These numbers are private + affordable C3 permissions.

The numbers include outline consents, detailed consents and unbuilt phases of schemes partly under way.

Also included are projects successful at committee but still waiting S106 sign-off.”

Set all that alongside the homelessness and rough sleeping crises in London. The BBC reported yesterday that more than 132,000 households were living in temporary accommodation on 30 June 2025, up 7.6% from the same time last year. Aside from the human cost, this is of course at a huge financial cost for London boroughs: £740m ‘black hole’: London’s temporary accommodation crisis draining local resources (London Councils, 13 October 2025). And at the sharpest end: Number of people “living on the streets” of London increases by 26% (Crisis, 31 July 2025).

Whilst I try not to wear out my two typing-fingers commenting on press speculation about forthcoming announcements, I think we can assume that the government and the Mayor of London will soon be announcing various measures to try to turn this around or at least provide some sort of jump-start (note to government press team, I suggest that we are in “jump-start” rather than “turbo-charge” territory). See for example the Guardian’s 17 October 2025 piece London developers to be allowed to reduce percentage of affordable homes.

The spectre in the press pieces of some temporary reduction in developers’ threshold for qualifying for the Mayor’s fast-track (i.e. basically avoiding the need for formal viability appraisal and a late stage viability review mechanism if they can commit to a level of affordable housing which is usually 35%, with a policy-compliant split of affordable housing tenure types within that – see policy H5 of the London Plan for more detail) down to perhaps 20% is being seen by some as amounting to an actual reduction in the amount of affordable (and particularly socially rented) housing that will be developed. But this analysis is unfortunately wrong: very few schemes are currently proceeding with 35% or more affordable housing. Viability appraisals either agreed or accepted after scrutiny on appeal (this is not developers cooking the books) are already coming out at way less than 20%, let alone 35% (which is why simply reducing the threshold alone wouldn’t be enough). See for instance the inspector’s decision in relation to the Stag Brewery appeal (summarised in my 4 May 2025 blog post (7.5% affordable housing) and the 29 May 2025 decision letter in relation to a proposed tower block in Cuba Street (16.6% affordable housing). Nor is this a purely London phenomenon, if you recall last month’s Brighton Gasworks decision (summarised in my 27 September 2025 blog post) (zero affordable housing).

20%, plus the other measures being whispered about such as increasing subsidies for socially rented housing and/or allowing councils not to charge CIL, may tip the balance so as to turn some non-developers back into being developers again and thereby deliver more affordable housing (including socially rented housing) in absolute numbers (which is what counts after all) than is currently the case.

But what about the many schemes consented on the basis of 35% or more, that simply aren’t proceeding, at least beyond basic operations to keep the permission alive (see my 7 September 2025 blog post The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive)?

If we look to amend existing, unviable, section 106 agreements, no longer do we have the benefit of section 106BA, a provision introduced in April 2013 via the Growth and Infrastructure Act 2013, to allow developers to apply to modify or discharge affordable housing obligations in Section 106 agreements where those obligations made a development economically unviable, and then repealed three years later in April 2016. That provision unlocked various stalled permissions at the time. Is it too late, or too unpalatable, for an amendment to the Planning and Infrastructure Bill simply to reintroduce it?

Instead, the main routes are:

If the section 106 planning obligation is at least five years’ old, a formal application to the local planning authority can be made under section 106 A of the Town and Country Planning Act 1990 on the basis that the relevant obligation, unless modified, “no longer serves a useful purpose”. The test is expressed very generally which is unhelpful but the case would be that if the obligation is causing development, otherwise beneficial, not to proceed, it cannot be serving a “useful purpose”. There is the right of appeal to the Planning Inspectorate.

Seeking variation of section 106 planning obligations in the slip-stream of an application made under section 73 of the Town and Country Planning Act 1990 (an application, of course, for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted – and which is to be assessed against the current development plan and other material considerations). This was the route taken in the Cuba Street appeal I mentioned above. Full planning permission had been granted in December 2022. A section 73 application was made to amend the approved floor plans set out in the schedule referenced in condition 2 of that permission, to “provide an increase in the residential units from 421 to 434, and a reduction in the affordable housing (AH) provision from 100 (71/29 affordable rented to intermediate split as a ratio) to 58 (66/44 affordable rented to intermediate split as a ratio). In percentage terms the change in AH would be from 30.15 % to 16.6%. A consequence of these changes would be amendments to conditions 24 and 29, with respect to wheelchair accessible homes and cycle storage, given that they relate to the quantum of development subject to the original permission.”

Negotiating a deed of variation to the section 106 planning obligation, outside these formal procedures, without any recourse to appeal if the authority is resistant.

A fresh application for planning permission – utterly the nuclear option in times of cost, time and risk.

If there is indeed some form of announcement from MHCLG and the Mayor of London, I will be interested to see:

What is said about existing stalled permissions and any advice that is to be given to boroughs as to the approach they should take when approached by way of any of these procedural routes.

More generally, how will any announced (presumably temporary) relaxations with regard to the London Plan policy H5 threshold approach or any other policy requirements sit as regards section 38 (6) of the Planning and Compulsory Purchase Act 2004 (“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”)? Where there’s a will there’s a way but this is all another reminder, as if we needed it, that the process for reviewing and updating the London is so slow as not to be fit for purpose.

Oh and we still await MHCLG’s updated planning practice guidance on viability.

“London calling, at the top of the dial.

And after all this, won’t you give me a smile?”

Simon Ricketts, 18 October 2025

Personal views, et cetera

Hillside: Every Journey Starts With The First Step

Various people have asked me what I made of the amendment to the Planning and Infrastructure Bill that Lord Charlie Banner KC sought to introduce last month, seeking to lance the large boil that is Hillside (and if that word means nothing (1) lucky you, read no further, or (2) please read my 2 November 2022 blog post Running Down That Hillside).

The truth is that for a long time I couldn’t really face getting back into the subject, having failed to get traction for expansion of what became section 73B when the Levelling-up and Regeneration Act Bill was passing through its Parliamentary stages, and, before that, having sat behind Charlie at the Hillside Supreme Court hearing. The problem is real, but arriving at a workable solution is hard.

The amendment was as follows:

Huge credit to Charlie because, if nothing else, his amendment has put the issue back on the table with MHCLG. Baroness Taylor’s response in the debate on 11 September 2025 (see columns 1736 to 1741), contained the following passages:

“The Government recognise that the Hillside judgment and subsequent court decisions have caused concerns across the development sector, and the noble Lord was kind enough to send me some of the articles that have been written since, setting out which problems they are causing. It has made it more challenging to use the practice of drop-in permissions to deal with changes in development proposals for plots on large-scale residential and commercial development in response to changing circumstances.”

“We want to ensure that large-scale developments, where they need to change, can secure the necessary consents to deal with these changes effectively and proportionately. Unfortunately, we are not persuaded that Amendment 169 is the solution to Hillside for overlapping planning permissions. It is too broad in scope, and we must be absolutely sure that it would not undermine the integrity of the planning system. The long-standing principle that Hillside endorsed—that it is unlawful to carry out a development when another permission makes it physically impossible to carry it out—is a sound one. Decisions are made on the merits of the entire development proposal, and this amendment would allow developers to pick and choose what parts of an approved development they wanted to implement when they had a choice.

Similarly, we need to consider carefully the implications of legislating to deal with overlapping planning permissions and development consent orders in general terms. […]

“We want to ensure that there is sufficient flexibility to deal with change to large-scale developments. Clause 11 already provides a framework for a more streamlined and proportionate process to change development consent orders, but we also want to look at how the framework can be improved for planning permissions. We would welcome further discussions with your Lordships and the wider sector on this matter.”

All this stuff about considering carefully and further discussions is all well and good but perhaps the next step now should be to keep a number of planners and planning lawyers in a locked room until they have arrived at a refined version of the proposal which is watertight, legally and in public policy terms? What situations are people actually worried may arise? How can those outcomes be designed out?

I don’t want to be locked in the room but to start the discussion…

I think we need a bit of clarity as to how an authority actually states in the later permission or in a section 106 agreement that the lawfulness of past and future development carried out pursuant to one of those planning permissions shall be affected. This wouldn’t really appropriately be done by way of a planning condition. Nor would it be part of the operative part of the permission. A statement of the legal effect of implementation of the permission on another permission or permissions sounds more like a role for an informative (although to have such a declaration with legal effect within an informative would be unprecedented and something for subsequent purchasers’ solicitors to root around for in acquisition due diligence processes) but what are the guardrails, for instance:

(1) Surely the local planning authority shouldn’t by this route be able to affect the lawfulness of past development (the Supreme Court in Hillside ruled out any potential effect on the lawfulness of development which has already happened)?

(2) Surely a statement as to the lawfulness of future development to be carried out under an existing permission should only be possible where otherwise Hillside could cause a problem ie where there would potentially be materially inconsistent development? Otherwise this could end up being potentially more constraining, dependent on the attitude of the relevant local planning authority.

(3) How can the rights of a landowner with the benefit of at least part of the existing planning permission be protected rather than find out after the event that another party has secured a permission with a statement that (potentially without justification) affects that landowner’s ability to continue to rely on that earlier permission?

(4) What is to prevent the outcome being a planning permission which allows plainly inconsistent planning permissions to be built out free even of the traditional Pilkington constraints?

These are the sorts of real-world issues the final version of any legislative provision would need to cover off. The drafting will be gnarly…

Secondly, we need to think about what procedural mechanisms would need to be put in place. For instance:

Should the planning application form include a question asking if within the planning application red line area there are any planning permissions on which the applicant still wishes to rely alongside implementation of any planning permission granted pursuant to this application, warning that if this question is not answered correctly, the consequence of implementing the planning permission sought may be that previously granted planning permissions may no longer be able to relied upon?

Should Planning Practice Guidance direct a local planning authority, in determining an application for planning permission, specifically to consider in a section of its relevant officer’s report whether there are any existing planning permissions, which relate to some or all of the land the subject of this planning application, and if so whether or not it would be appropriate in planning terms for further development to be carried out under each of those permissions should this application be approved and implemented? And might digital planning, possibly even the Extract tool, make this less of a paperchase than traditionally it certainly would be?

It’s good that people are thinking about all this again. But it is darned hard! Mountain not hill.

Simon Ricketts, 3 October 2025

Personal views, et cetera

Just What Is It About Today’s Planning System that Makes Appealing So … Appealing?

On 22 September 2025 the Secretary of State allowed two recovered appeals, granting planning permission for proposals which local authority members had refused against their professional officers’ opinions. In one of those cases, a full award of costs was ordered against the authority which I guess will amount to several hundred thousands of pounds. Development was unnecessarily held up in both cases for what turned out to be no good reason, in one case the decision to refuse having been in March 2024 following submission of the application in September 2022 and the other in May 2024 following submission of the application in November 2021. Both decisions were made in accordance with the relevant inspector’s recommendation.

I’m thinking back yet again to the Lichfields May 2025 research paper for the LPDF and Richborough Estates, How Long Is A Piece Of String? which found not only that applications for major development are taking twice as long to determine as 10 years ago but that it is now on average quicker to achieve permission via appeal than via the local planning authority.

I’m also thinking of the latest 50 Shades of Planning podcast episode Who’s In Control? (27 September 2025) where a number of us discuss, amongst other things, the ethical position of officers whose advice is overturned by councillors.

And I’m thinking that neither the proposed move to an increased number of applications being determined by way of delegated powers, and increased training for members, would have been likely to change the position with these two appeals. Do awards of costs influence behaviour? I would welcome your views. From the outside I’m not sure they really register either with councillors or, perhaps most importantly , with voters.

The two decisions were as follows:

Brighton Gasworks

Planning application submitted to Brighton and Hove Council in November 2021 by St William for a scheme that, following amendments, included 495 residential units and 2,791 square metres of commercial space. It was recommended for approval in May 2024 but in the face of significant local opposition was resolved to be refused. The reasons for refusal (1) alleged the development would represent overdevelopment of the appeal site by virtue of excessive massing, density and height thereby harming the townscape of the area including its heritage assets; (2) related to the proposed housing mix (subsequently withdrawn) and (3) concerned the effect of the appeal scheme on the living conditions of future residents with particular regard to amenity and light.

St William appealed. The appeal was recovered by the Secretary of State. The inquiry sat for six days in March 2025. The Secretary of State’s decision letter accepted the inspector’s recommendations and allowed the appeal. The Secretary of State’s conclusions are worthy of note on issues such as character and appearance, density and height (paragraph 14),; the current negative effect of the “underused and despoiled” site on the “varied and robust urban townscape of east Brighton” (paragraph 15); daylight and sunlight and living conditions more generally (paragraphs24 to 28); and acceptance of the agreed position between the appellant and the council that the development would not be able to provide affordable housing given the high cost of remediating the site (paragraph 30).

In his accompanying costs decision letter, again accepting his inspector’s recommendation, he orders a full award of costs in favour of St William, on the basis that:

* the Council prevented or delayed development which should clearly be permitted, having regard to its accordance with the development plan, national policy and all other material considerations (CR48);

* the Council failed to produce evidence to substantiate each reason for refusal on appeal, made vague, generalised or inaccurate assertions about a proposal’s impact and failed to determine similar cases in a consistent manner (CR49); and

* there were substantial procedural failings on the Council’s part including an obstructive and untimely approach to the Statement of Common Ground, the submission of a Statement of Case which was bereft of meaningful detail and a failure to review.

When it comes to any councillor training programme I hope this appeal decision will be part of the study materials, including, verbatim, these conclusions from the inspector’s costs report:

“Had the Council had proper regard to its own Development Plan, the NPPF, other material considerations and carried out a proper balancing exercise, the application would most likely have been approved notwithstanding the concerns raised by Members. The Council therefore prevented or delayed development which should clearly be permitted, having regard to its accordance with the development plan, national policy and all other material considerations.

The Council’s objections did not stand up to scrutiny and therefore I find that the Council failed to produce evidence to substantiate each reason for refusal on appeal, made vague, generalised or inaccurate assertions about a proposal’s impact and failed to determine similar cases in a consistent manner. It goes without saying that a decision to refuse planning permission on an allocated site against the professional advice of officers requires very careful consideration and highly robust reasoning.

There were also substantial procedural failings on the Council’s part including an obstructive and untimely approach to the SoCG, the submission of a Statement of Case which was bereft of meaningful detail and a failure to review its case promptly following a material change in national policy.

The above unreasonable behaviour resulted in unnecessary or wasted expense, as described in the PPG. I therefore conclude that a full award of costs is justified.

While I understand that the above will come as a bitter blow to the Council, it is right that I acknowledge the important work of officers during what was a long preapplication and determination period. That work culminated in the production of a Committee Report which was of the very highest order. Officers were also beyond reproach for the way they assisted the inquiry.”

Sky Studios Elstree expansion proposal

Planning application submitted in September 2022 for a film and television production studio (use Class E(g)(ii)) with ancillary floorspace, backlot, new access arrangements, car parking, landscaping, infrastructure and associated works in the green belt north of the existing Sky Studios Elstree complex. Hertsmere Borough Council members had resolved to refuse the application in March 2024 against officers’ recommendations, concluding that the “very special circumstances” test had not been made out for inappropriate development in the green belt.

Sky Studios appealed in October 2024 and the appeal was recovered by the Secretary of State. The inquiry sat for four days in March and April 2025. The Secretary of State’s decision letter accepted the inspector’s recommendations and allowed the appeal. Following the introduction of the grey belt policy designation into the NPPF in December 2024, the Secretary of State found that the site was indeed grey belt. The only real issue was whether there was unmet need for the development, on which issue his findings were as follows:

“For the reasons given at IR14.20-IR14.23 and IR14.43, the Secretary of State agrees with the Inspector that Sky Studios Limited has identified a need to enlarge its current operation at SSE, that there is a reasonable and probable outcome that if the appeal is allowed, the type of development that would take place would be for an extension of the existing studio site at SSE, and that there is an unmet need for studio space related directly to the expansion of SSE (IR14.23).

In reaching this conclusion, the Secretary of State has taken into account that the description of development does not specify that the development would be used as an extension to the existing SSE site, and no condition requiring the development to be an extension has been put forward either (IR14.17). He acknowledges that it is conceivable that the proposed development could be operated as a standalone studio business separate to SSE without any restrictions imposed by the description and any planning conditions (IR14.19). However, taking into account the matters set out at IR14.20-14.23, the Secretary of State considers that the proposal is highly likely to be brought forward as an extension and that it is appropriate to proceed on this basis. He considers on that basis that unmet need has been demonstrated and carries substantial weight in favour of the proposal, and that the requirement in NPPF155(b) is met.

The Secretary of State has also considered what the need position would be on the basis of a standalone studio. He has noted the position set out at IR14.24-14.25, but like the Inspector considers that national and local economic policy seeking to grow the sector, and an increased spend in productions, do not in themselves equate to unmet need.”

“…if considered as a standalone studio, the Secretary of State considers that unmet need has not been demonstrated. On that basis, the requirement in NPPF155(b) would not be met, the proposal would therefore be inappropriate development in the Green Belt and very special circumstances would need to be demonstrated. As set out at paragraph 21 above, in that scenario the Secretary of State considers that the harm to the Green Belt in terms of inappropriateness, harm to openness and harm to purposes would have carried substantial weight. Although he has not proceeded on that basis, for the avoidance of doubt, he considers that the harm to the Green Belt and any other harm would be clearly outweighed by the benefits of the scheme such that very special circumstances would exist and development in the Green Belt would be justified.”

A textbook application of green belt principles. (Incidentally, in the unlikely event that you need a primer on grey belt I think you can still access a webinar I gave this week on that subject via Inside Housing – see here for more details).

Perhaps the outcome of the Sky Studios appeal only became obvious once we had the December 2024 NPPF but perhaps the big question for MHCLG should be, rather than further tweaks to law or policy, how to make sure that many more appeals like these two are not needed before the message gets through as to how the current legislation and policy framework is to be applied? Otherwise, whether through members’ overturns, or through non-determination appeals, schemes will be continuing to come before the Planning Inspectorate, with all the delay, expense and unnecessary risk thereby arising, that really should be determined appropriately at a local level. It’s reassuring that the appeal route is available but the relative attractiveness of that route versus waiting for a local outcome is not good in public policy terms – as I said at a breakfast discussion that we held at Town Legal this week alongside Shared Voice and Rupert Warren KC and attended by the interim chief planning inspector Rebecca Phillips (for which thanks for her participation), it’s the equivalent of people being unhappy with the service at their local GP and instead going straight to A&E…

Simon Ricketts, 27 September 2025

Personal views, et cetera

Just what is it that makes today’s homes so different, so appealing? 1956 collage by Richard Hamilton

Pragmatic Planning Guidance: The Revised Flood Risk PPG

The application of the flood risk sequential approach to development proposals has been watered down this week.

From being part of a sensible risk-based assessment as to where it is safe to locate development, the process has (like so much that we deal with) grown over time to become a technocratic obstacle course with plenty of traps for the unwary. See for instance my 19 July 2025 blog post A PPG Change Could Easily Mop Up This Surface Water Flood Risk Sequential Test Mess. As of 17 September 2025 we now have that revised planning practice guidance.

My Town Legal colleague Tom Brooks provided a mark up of the changes from the previous guidance. They are as follows:

The important change is that we move from a position where the sequential approach is still required where the site is currently at risk of flooding, even where that risk would be removed as a result of development, to a position where it is not required as long as “a site-specific flood risk assessment demonstrates clearly that the proposed layout, design, and mitigation measures would ensure that occupiers and users would remain safe from current and future surface water flood risk for the lifetime of the development (therefore addressing the risks identified e.g. by Environment Agency flood risk mapping), without increasing flood risk elsewhere.” So, if your flood risk consultant is in a position to reach such a conclusion, no longer does there need to be a wide trawl for other sites, currently at lower risk of flooding, where the development might be situated. Might developers still hedge their bets and engage in a sequential testing just in case an issue arises? I suspect so, but this change is certainly going to simplify applicants’ case as to flood risk matters in many instances – particularly, I suspect, where the only potential risk arising is by way of the accumulation on site of surface water.

Whilst not stated in the revised guidance, I note that disapplication of the need to follow the sequential approach also has the effect of relieving developers as well from complying with the two limbs of the “exception test” that have to be followed once the sequential approach has been navigated:

“a) the development would provide wider sustainability benefits to the community that outweigh the flood risk; and

b) the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.“

The reference in the revised guidance to the fact that, if a sequential approach is followed, housing considerations, including housing supply, should be weighed in the balance against the outcome of that process, is helpful express recognition of the approach already taken by various appeal inspectors (see again my July blog post): planning permission may still be granted even if the test is failed – if there are sufficient weighty counterveiling considerations.

The other amendments to the guidance give further clarity to the parameters of the search for alternative sites to be carried out under the sequential approach:

As with MHCLG’s February 2025 planning practice guidance on grey belt, at a time where the need to simplify and rationalise our current sprawling system is so acute and urgent, isn’t it interesting how pragmatic changes can still be be made without recourse to legislation or indeed even lengthy consultation processes?

Simon Ricketts, 21 September 2025

Personal views, et cetera

The Only Way Is Ethics – What Is The Role Of The Professional Witness?

In preparing for a 50 Shades of Planning podcast episode we are recording this week on the wider subject of ethics in planning I looked back on an interesting case on the position of those who give evidence as an expert in the High Court on planning issues in circumstances where they have previously been involved as a consultant in the project.

The position under the High Court’s Civil Procedure Rules is certainly tighter than the position in relation to those giving evidence at planning inquiries, for instance, but perhaps there are still lessons, or reminders at least, for the latter. The case is Freeman & Others v Home Farm Ellingham Limited (HHJ Claire Jackson (sitting as a High Court Judge in the Business and Property Courts in Newcastle-upon-Tyne, 17 April 2025) and it was brought to my attention by a LinkedIn post by James Maurici KC who I hope I will not mind my reproducing it in full as follows:

“Interesting recent judgment that I have just come across for those who give expert evidence in the High Court on planning and development related issues.

In Freeman v Home Farm Ellingham Ltd [2025] EWHC 878 (Ch) the Court was considering a claim for specific performance of an obligation to procure the adoption of an access road to a housing development. Of wider interest is the decision of the Court (HHJ Claire Jackson sitting as a Deputy High Court Judge) to rule inadmissible the evidence of one of the experts for the parties. The expert evidence for the claimant was challenged on the basis that he was partisan in his evidence and failed to therefore comply with his duties as an expert under CPR Part 35: see paras. 32 – 44 of the judgment.

The Court noted that the expert was heavily involved in the planning processes which led to the housing development in issue but that this did not in itself preclude his acting as an expert in the Court proceedings under CPR Part 35. The Court gives a useful summary of the principles applicable to the issue of independence of experts (see paras. 36 – 39). The Judge went on to rule the expert evidence inadmissible on the basis that (see para. 40) the claimant’s expert “was a partisan witness who both wrote his report and gave evidence at trial for his client in a non-impartial way” and that he (ibid) “did not act simply as an expert in the case, he acted as an advocate for the Claimant. This was obvious both from his written report and his oral testimony, where frequent criticism can be made of [the expert] for the tenor, tone and content of his evidence.” The Judge gives a list of examples of her concerns with the evidence (including among a number of matters that he “orchestrated the production of what appears to be factual evidence”). She concluded (see para. 41) he was “not impartial but rather acted to prefer the interest of the Claimant as his client and to advocate a case for it. This lack of impartiality affected both the preparation and presentation of [his] evidence, his assessment of the evidence and his findings” and (see para. 42) that the “partiality and desire to act as an advocate for the Claimant” had “permeated his entire report and his oral evidence and therefore it is not on this occasion appropriate to admit [his] report or oral testimony as admissible“.

So an important case for those who give expert evidence in the development field at High Court level. And it is a reminder that the requirements of CPR Part 35 are perhaps more stringent than those that apply to the giving of expert evidence at planning inquiries and similar processes: see PEBA’s “Good Practice Memorandum 2: Guidance for barristers on dealing with experts at Planning and Other Similar Inquiries“.

The issue is a practical one: the local planning authority’s expert witnesses will often have been heavily engaged in the matter at application stage and sometimes may have publicly given advice to councillors on the issues, only for the advice to have been overturned. But it is potentially no easier for the appellant’s expert witnesses: the planning witness may have been heavily engaged in advising their client initially on the suitability of the site, perhaps making representations through the local plan process, coordinating the preparation of the application and so on – often having a long term relationship with the client, which may be affected by the outcome of the appeal (and of course may indirectly benefit from a successful outcome by way of follow-on work in relation to the project). In a system where professional, objective, opinions are at a premium, how to ensure that the inspector or Secretary of State gives weight to the evidence which professionals give on relatively subjective matters, where they are not coming at the issues from a fresh, entirely independent, perspective?

The Planning Inspectorate’s Planning Appeals Procedural Guide has only brief advice:

“15. Expert evidence

15.1. Expert evidence is evidence that is given by a person who is professionally qualified to express an opinion on a particular subject. It can be used in all appeals.

15.2. It is the duty of an expert to help the Inspector. This duty overrides any duty the expert may have to the party that involved them in the appeal or that is paying them.

15.3. The evidence should be accurate, concise, and complete and should represent the expert’s honest and objective opinion. If the expert belongs to a professional body that has a code of practice on professional conduct dealing with giving evidence, the expert is expected to comply with the code.

15.4. Expert evidence should include an endorsement such as that set out below or similar (such as that required by a particular professional body):

“The evidence which I have prepared and provide for this appeal reference APP/xxx (in this proof of evidence, written statement or report) is true [and has been prepared and is given in accordance with the guidance of my professional institution] and I confirm that the opinions expressed are my true and professional opinions.” This will enable the Inspector and others involved in an appeal to know that the material in a proof of evidence, written statement or report is expert evidence.

15.4.1. Giving expert evidence does not prevent an expert from acting as an advocate so long as it is made clear through the endorsement or otherwise what is expert evidence and what is not.”

For the purposes of this post I am just focusing on expert planning evidence, rather than other professional disciplines (but the same holds true right down the expert witness batting order).

RTPI members are subject to its code of conduct which includes the following:

“Independent professional judgement

11. Members must exercise fearlessly and impartially their independent professional judgement to the best of their skill and understanding.

12. Members must not make or subscribe to any statements or reports which are contrary to their own genuine professional opinions, nor knowingly enter into any contract or agreement which requires them to do so.

13. Members must base their professional advice on relevant, reliable and supportable evidence and present the results of data and analysis clearly and without improper manipulation.”

There is also more specific practice advice on ethics and professional standards, within which section 5 specifically deals with giving evidence at inquiries:

“The Code requires RTPI Members to act with integrity and express their own professional view. As an ‘expert witness’ at a planning inquiry or hearing, you are there to give evidence in the form of facts and professional opinion. Facts must be true and professional opinion must be first hand. If the evidence is someone else’s opinion e.g. an assistant planning officer giving evidence of a chief officer’s recommendation to the local authority they can only do so as evidence of a matter of fact. There may be times where you must deal with a situation where your professional view is under scrutiny.

For RTPI Members employed by a public body (such as a local planning authority) in particular, you may be asked to defend a decision that differs from the public report you wrote recommending an alternative view. This can sometimes be referred to as a ‘committee overturn’. For RTPI Members employed in a private consultancy, a client may commission you to represent or ‘advocate’ their interests where, on balance, in your opinion the proposal that is being tabled at appeal needs improvement.

Dealing with committee overturns

When appearing as an expert witness you must disclose your independent professional opinion and should endorse this upfront in your witness statement or report. Advice from the Planning Inspectorate on ‘what is expert evidence’ and how to endorse the evidence you give is a useful guide for any professional planner regardless of which legal system you work within.

RTPI Members representing a decision that is a committee overturn and therefore contrary to their officer report should take care to avoid giving the impression any evidence they are presenting is their own professional view. Instead you may feel comfortable stating information as the ‘council’s view’ and therefore acting as an advocate for the case.

Clearly the RTPI Member whose professional opinion does not conform with recommendations the evidence is supposed to support is unlikely to be the best witness in such circumstances. You should discuss this possible situation with your manager who will want to consider the consequences for the employer if any difference in professional judgement comes to light during the appeal process. Concerns should be raised in good time to allow for any changes in personnel to be arranged.

The authority may still consider asking the officer to give technical evidence at the inquiry, but call someone else who is in the position to speak with conviction of the planning reasons for the authority’s decision. This could be either another council employee who is quite appropriately able to form a different professional view or, in some instances, the local politician who, as Chair of the Planning Committee, made the decision.

An authority may alternatively employ a planning consultant to undertake the task who can weigh up the information, development plan policy and other material considerations and also form a different professional view.

Planners as advocates

The role of an advocate is quite different from acting as an expert witness and involves taking the wider role of presenting to the inquiry or hearing what the authority or client would say for

themselves. An RTPI Member who takes on the role of advocate will need to have skills in advising on case content and presenting a case, and may need to seek further legal advice.

It is possible that you may be asked to act as an advocate and appear as an expert witness at a hearing or inquiry. You must decide whether the two roles are reconcilable, possibly after discussion with colleagues. You must have confidence that you are able to retain professional integrity, whilst serving the best interests of your client or employing organisation.

RTPI Members may still act as an advocate in cases where their professional views differ from the evidence being advanced, provided that they do not wilfully mislead the inquiry or fail to give the inspector or other officer the help they are entitled to receive.”

Still quite brief.

RICS members are subject to more detailed professional requirements, set out in a practice statement and guidance note for expert witnesses. I’ve previously noted – see my 20 October 2018 blog post Planning Inquiries: Expert Witnesses & Success Fees that was written on the back of a judgment of Holgate J (as he then) was in relation to a business rates case- that, unlike with the RTPI, the RICS professional guidance expressly prohibits success fees tied to the relevant dispute outcome, although surely this impliedly applies across the board.

It seems to me that transparent, enforced, rules governing the conduct of professional expert witnesses are essential given the nature of our system where ultimately most decisions on appeals turn upon issues of professional judgment. And in practice surely the more that the expert can demonstrate their professional independence and integrity and that their evidence is not influenced by any desire to advocate the client’s position, the more likely it is that the decision maker will give due weight to that evidence.

Sorry, that was all a bit dull. Hashi Mohamed is chairing our podcast chat – it will be much better. Stay tuned.

Simon Ricketts, 13 September 2025

Personal views, et cetera

The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive

At a time when political focus is on the actual delivery of development projects, sadly much of our time as planning lawyers is still spent on keeping planning permissions alive ready for some future time when the particular project may be viable or otherwise able to proceed.

Planning permissions take an age to secure. My 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? referred to the May 2025 Lichfields research work How long is a piece of string? which found that the average determination period for outline planning applications for ten or more dwellings in 2024 was 783 days (up from 284 days in 2014).

So, maybe two or three years after scheme design freeze, the developer achieves its planning permission. By which time the market and/or technical requirements may have changed. If a full planning permission it may well have the default implementation deadline of three years, failing which it will lapse. If an outline planning permission it may well have the default reserved matters submission deadline of three years and a default implementation deadline of the later of five years from grant and two years from the last reserved matters approval to be secured.

The Planning and Compulsory Purchase Act 2004 tightened the screw on developers in two ways: first by removing the ability to use section 73 applications to extend the deadline for implementation and the submission of reserved matters applications (subject to temporary extensions first allowed for in the wake of the financial crisis and secondly in the light of the Covid pandemic) and secondly by reducing the default implementation deadline to three years from five.

I would argue that those measures have not served to increase or speed up the delivery of development, nor has it cleared the system of planning permissions which are no longer ever likely to be built out. All it has done is increase the extent to which developers, when they are not ready to proceed with development, are driven to carry out a limited implementation strategy simply to keep the planning permission alive.

After all, relatively minor works pursuant to the planning permission may serve to keep it alive; a list of “material operations” is included in section 56 of the Town and Country Planning Act 1990:

“(a) any work of construction in the course of the erection of a building;

(aa) any work of demolition of a building;

(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d) any operation in the course of laying out or constructing a road or part of a road;

(e) any change in the use of any land which constitutes material development.”

However, care is needed, because the works carried out must not be in breach of any pre-commencement conditions on the planning permission (unless particular exceptions apply that have been established by case law). Often therefore, prior to works being carried out, it will be necessary to discharge various conditions or to vary them so as to allow for the implementation works to be carried out pre-discharge.

The Building Safety Act has given rise to an additional complexity in the case of “higher-risk buildings”, namely (in basic summary) buildings that are to contain at least two residential dwellings and which are either at least 18 metres in height or at least seven storeys. Under regulation 3 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, works can’t start to construction until building control approval has been secured, meaning that what may have been a straight-forward implementation strategy – perhaps digging a trench for part of the foundations of the building – may need to be ruled out given the current delays in the Building Safety Act gateway checks processes. (What is and isn’t determined to be a start to construction is left a little hazy, given that HSE guidance states that “carrying out of site set up, demolition of previous buildings, stripping out works or the excavation of trial holes or installation of test piles would not be considered as starting work“).

Thought will also need to be given to whether the implementation works trigger any onerous section 106 agreement obligations, bearing in mind that the agreement is likely to have excluded certain types of preliminary works from the definition of “commencement of development” in the agreement.

If the scheme is in an area where a CIL charging schedule is in effect, thought will also need to be given to the extent to which a community infrastructure levy payment is triggered and for how much: is this a phased permission where CIL for the relevant phase will be triggered, or will these limited works trigger payment of CIL for the entire development?

Lastly, how to have a document trail that can be relied upon in the future to demonstrate that the planning permission has been kept alive? There are well-trodden strategies for securing a certificate of lawfulness under section 191 or 192 of the 1990 Act (the two processes entail different strategies, with different risks and indeed even sometimes very different application fees).

Does it all have to be quite like this? What public policy purpose is served? I was interested recently to learn that in Northern Ireland, for instance, the position is different:

First, rather than the long list of material operations within section 56 of the 1990 Act, section 63 (2) of the Planning Act (Northern Ireland) 2011: “development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—

where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;

where the development consists of or includes alterations to a building, any work involved in the alterations;

where the development consists of or includes a change of use of any building or other land, that change of use;

where the development consists of or includes mining operations, any of those operations.”

Decisions of the Planning Appeals Commission in Northern Ireland have determined that for instance the laying out of an access or the digging of a trench is not sufficient to meet this test.

Secondly, there is a specific procedure in Northern Ireland for renewing planning permissions: Regulation 3 of the Planning (General Development Procedure) Order (Northern Ireland) 2015 , with Department for Infrastructure advice as follows:

“As a general rule, such applications should be considered and refused only where: (a) there has been some material change in planning circumstances since the original permission was granted (e.g. a change in some relevant planning policy for the area, or in relevant highway considerations, or the publication of new planning policy guidance, material to the renewal application); (b) continued failure to begin the development will contribute unacceptably to uncertainty about the future pattern of development in the area; or (c) the application is premature because the permission still has a reasonable time to run. This is not an exhaustive list and each application must be considered on a case by case basis.”

Is this a better approach? What do we think?

Simon Ricketts, 7 September 2025

Personal views, et cetera

Court of Appeal Cuts Down Epping Forest

It was interesting YouTube viewing this afternoon (29 August 2025) wasn’t it? A press summary has been released, which is what Bean LJ read out. A longer full text judgment will be published later today or Monday.

I cover Eyre J’s first instance ruling in my 20 August 2025 blog post Planning Law Is Being Used For Politicking About Asylum Seekers. But we can now forget about that ruling. The Court of Appeal has overturned it, with robust criticism both of Eyre J’s approach and, it must be said, that of Epping Forest District Council.

Kemi Badenoch, leader of the Conservative Party, has subsequently issued a statement urging council’s seeking similar injunctions to “KEEP GOING!”. That is reckless advice.

Nigel Farage, leader of Reform, has Xed:

“The government has used ECHR against the people of Epping.

Illegal migrants have more rights than the British people under Starmer”

Again, recklessly wrong, inflammatory even. And, as you will see, the rights of asylum seekers (not “illegal”, not “migrants”) under the European Convention on Human Rights played no part in the Court of Appeal’s reasoning.

Eyre J’s rulings in Epping Forest District Council v Somani Hotels Limited (19 August 2025) were:

To refuse to allow the Home Secretary to be joined as a party to the proceedings

To grant an interim injunction requiring the hotel to be vacated of asylum seekers by 12 September, until a final ruling in the proceedings at a full hearing which will take place in mid-October 2025

To refuse an interim declaration that the use of the hotel for asylum seekers’ accommodation is a breach of planning control (Epping Forest District Council subsequently, wrongly, represented in its subsequent press statement that the declaration had been granted but had to retract that when contacted by Planning magazine!).

Today’s appeals by the Home Secretary and Somani Hotels Limited were in respect of the first two matters and were successful.

Home Secretary to be joined as a party

From the press summary of the Court of Appeal’s judgment:

“The judge denied himself the opportunity to consider the wider range of public interest factors which would be relevant to this application; these, in our view, rendered it more than just merely ‘desirable’ that the Home Secretary be enabled to participate in the court process. The judge needed to put himself in a position to determine the application from the most informed perspective.”

Grant of the temporary injunction

The Court of Appeal found that although the question of whether to grant an interim injunction is a matter for the discretion of the judge, only to be set aside where the appeal court identifies “a flaw or flaws in the judge’s treatment of the question to be decided, such as an error of law, a gap in logic, or a failure to take account of some material factor, which undermines the cogency of the conclusion”, the judge had made “a number of errors of principle which undermine his decision.”:

(from the press summary:)

“The provision of accommodation for asylum seekers pursuant to the Home Secretary’s statutory duty is a national issue requiring a structured response. Ad hoc interim injunction applications seeking closure of particular sites may each have some individual merit, but the judge’s approach ignores the obvious consequence that closure of one site means that capacity needs to be identified elsewhere in the system, and may incentivise local planning authorities who wish to remove asylum accommodation from their area to apply to the court urgently before capacity elsewhere in the system becomes exhausted. The potential cumulative impact of such ad hoc applications was a material consideration within the balance of convenience, but was not considered by the judge, perhaps because he did not have the advantage in reaching his decision of evidence and submissions from the Home Office.”

Incidentally, the Court of Appeal goes on to describe as “unattractive” an argument raised by the Home Secretary as to a hierarchy of human rights with particular weight to be given to the fact that “the Home Secretary’s statutory duty is a manifestation of the UK’s obligations under Article 3 of the European Convention on Human Rights”. Even if in Farage language the government “used ECHR”, this is no basis for the Court of Appeal’s ruling.

“The fact that the judge gave even limited weight to the fact of protests occurring, including unlawful protests, outside the hotel, were “worrying aspects of the judgment. If an outbreak of protests enhances the case for a planning injunction, this runs the risk of acting as an impetus or incentive for further protests, some of which may be disorderly, around asylum accommodation. At its worst, if even unlawful protests are to be treated as relevant, there is a risk of encouraging further lawlessness. The judge does not appear to have considered this risk, again perhaps because he had denied himself the advantage of hearing submissions on the merits from counsel for the Home Secretary.”

By judicial standards this again is trenchant criticism by the Court of Appeal of Eyre J’s approach.

Epping’s previous delays in taking any steps whatsoever:

“For much of the period of four years from 2020-2024 Somani had been running the Hotel as accommodation for asylum seekers without enforcement action from the Council. When, in 2023, Somani sought planning consent to change its use, for over a year Epping did not process the application, notwithstanding the statutory duty upon it to do so within eight weeks. The Council was aware by February 2025 that the Hotel was once again to be used to house asylum seekers, and by its letter of 15 May 2025 Somani made clear that it had been advised by the Home Office that a planning application was unnecessary.

The Council took no steps in response to this letter whether by issuing an enforcement notice or otherwise. There was no threat of court proceedings.

Somani was first made aware of any step of this kind when it received the court papers and a court bundle running to over 1600 pages together with a detailed skeleton argument prepared by leading and junior counsel. The tactics used on the Council’s behalf in this regard were not only procedurally unfair to Somani, but ought to have reinforced the argument that the delay was a significant factor in the balance against the grant of interim relief.”

The hotel’s actions were wrongly characterised as “deliberate”:

“The judge found as a fact that Somani had acted “deliberately” in declining to seek change of use permission under planning law after April 2025; he was critical of them for taking this line. He was wrong in both respects. Those undeserved criticisms (which were repeated several times in the judgment) plainly played a material part in the judge’s ultimate decision. If the Council had considered Somani to be in breach of planning laws, it could have taken enforcement measures provided for within the 1990 Act. It did not do so. In short, the judge’s exercise of discretion in this case was seriously flawed by his erroneous reliance on the “deliberate breach” as a significant factor in favour of the grant of an interim injunction.”

The temporary nature of the injunction

“We emphasise here, as we did at the outset, that the issue for the judge in August was whether to grant a temporary injunction until the trial in October. The judge appears to have given very little weight to the desirability of preserving the status quo until that point. The risk of injustice to the residents of the Hotel by being dispersed by 12 September, when the trial of the claim was to take place only some six weeks later, seems to have had oddly little resonance with the judge.”

What now?

We now await the full hearing of the case in mid-October, where a central issue will be whether there is a breach of planning control in the first place. For the avoidance of doubt that question is not addressed by the Court of Appeal in its judgment – and did not need to be at this stage. Of course, it is conceivable that there will never be a full hearing if the Home Office decides no longer to use the Bell Hotel in any event.

It is inconceivable that any council would now succeed with an application for an interim injunction, save in the most extreme circumstances, ahead of a ruling following that final hearing, or a final hearing in any future case that is brought. There would be significant cost risks for any council that took that “KEEP GOING!” advice seriously.

Finally, as the court made clear, this case (like this blog post) is “not concerned with the merits of Government policy in relation to the provision of accommodation for asylum seekers, in hotels or otherwise.”

Simon Ricketts, 29 August 2025

Personal views, et cetera

Planning Law Is Being Used For Politicking About Asylum Seekers

The sheer extent of coverage, and speculation as to the implications, of Eyre J’s ruling in Epping Forest District Council v Somani Hotels Limited (19 August 2025) has a whiff of the silly season about it: the principles in the case law have not moved on substantively since my 14 January 2024 blog post Accommodating Asylum Seekers: Some Recent Planning Law Cases.

Eyre J’s judgment is a useful analysis of familiar principles. Why is it headline news then?

A whiff of the silly season but an even more pungent and worrying whiff of political opportunism – the Conservative party leader tonight (20 August 2025) encouraging all Tory-led local authorities to follow Epping Forest’s lead (despite the previous Government having set up this whole arrangement in the first place whereby hotels are block-booked by the Home Office via intermediary companies) and the Reform party leader encouraging more protests.

My personal view is that I’m not at all sure that we in the planning world should accept the planning system being used by politicians like this – whether to bash the government or to pursue largely misguided or misdirected campaigns against those who beyond doubt are vulnerable and in need. This is an issue for government to address, rather than to be fought out hotel by hotel via arguments about whether there has been a material change of use, based on old and inadequate case law. Particularly given that, if the statistics are to be believed, the use of hotels for asylum seeker accommodation is being reduced in any event and, to state the obvious, whilst the processing of asylum claims still needs to be sped up, these people need to be accommodated somewhere!

For those wanting to rely on the case, I draw attention to three key points:

This judgment is about an application for an interim injunction

The issue before Eyre J, as was the position in the Great Yarmouth and other cases mentioned in that January 2024 blog post, was whether to grant an interim injunction ahead of a full hearing of the case – and it is crucial to remember that the question of whether an interim injunction is to be ordered is down to the judge determining the “balance of convenience” on the specific facts of the particular case. Lawyers will be familiar with the American Cyanamid [1975] AC 396 test, which Eyre J summarises by reference to the later Sabmiller Africa v East African Breweries case [2009] EWHC 2140: “If the court is satisfied that there is a serious question to be tried, it must go on to consider whether the claimant would be adequately compensated in damages and whether the defendant would be in a financial position to pay them. If the answer to both of those questions is in the affirmative, no injunction should normally be granted. If not the court must consider whether the defendant would be adequately compensated under the claimants undertaking as to damages in the event of his succeeding at trial. If the answer to that question is “yes” the fact that the defendant may succeed at trial is no bar to the grant of an injunction. Where there is doubt as to the adequacy of damages for both parties the court must determine where the balance of convenience lies. If matters are evenly balanced it may be wise to take such measures as are calculated to preserve the status quo…A fundamental principle is that the court should take whatever course appears to carry the lower risk of injustice if it should turn out to have been the “wrong” course – in the sense that the court either grants an injunction which should have been refused or refuses to grant an injunction that should have been granted.”

Eyre J weighs up the factors in favour of an interim injunction at paragraphs 105 to 112 and those against at 114 to 116. The factors that weighed in favour included that the defendant hotel company had not made an application for planning permission or for a certificate of lawful use. The judge gave limited weight to “the fear of crime resulting from the use of the Bell; the need to address lawful protests; and the consequences of the actions taken to address unlawful activity.”

There is no final judgment as to whether there was a material change of use requiring planning permission

The court has expressly not reached any final judgment as to whether the accommodation of asylum seekers at the hotel amounted to a material change of use. Indeed, the council sought an interim declaration to that effect, which the court refused: “Although, as will be seen below, there is considerable force in the Claimant’s arguments that there has been a change of use the Defendant has counter-arguments which cannot simply be dismissed out of hand. In addition, as I have already explained, the question of the proper characterization of the use is fact-sensitive and for that reason alone this is not a case where an interim declaration is appropriate. Further, the second element of the proposed declaration, namely that the current use is not a permitted use, does not follow from the first element, namely that the current use is not use as a hotel. As Holgate J explained in Ipswich there will only have been development if there has not only be a change of use but if that change of use has been material. It follows that a declaration that the current use was not use as a hotel would not resolve matters and the court is not in a position at this stage to make a declaration that any change has been material.”

Eyre J does embark upon some analysis, although subject to this health warning:

“In doing so I am mindful that the case remains at the interim stage where there is limited evidence (and markedly less detailed evidence than could be expected at a final hearing and even more so than would be available if the matter were being considered at a planning appeal before an inspector); where the parties have had limited opportunity to advance detailed arguments; where the court’s opportunity for mature reflection is limited; and where the issues involve questions not only of fact but also of planning judgement.”

“There are a number of factors which operate against a finding that there has been a change of use. The principal ones are:

i) There have been no internal structural changes in the Bell.

ii) The external appearance of the Bell is unaltered – the presence of security fencing erected to address recent unlawful hostile activity is to be disregarded for these purposes.

iii) The Defendant’s staff continue to operate the facilities at the Bell and to provide the services there.

iv) Catering, cleaning, and related services are provided for those accommodated at the Bell in the same way as they previously were for hotel guests.”

There are, however, other factors which would support a finding of a change of use namely:

i)Those accommodated are all of one category of person namely single male asylum seekers.

ii) The entirety of the Bell is devoted to providing accommodation for those persons pursuant to an agreement with CTM and is to be so devoted for a significant period of time (it is the latter element which distinguishes the situation from that of a block booking of a hotel for conference or training course).

iii) Those accommodated have no choice in the location of the premises in which they are placed. They did not choose to come to the Bell and have no control over how long they are to stay there.

iv) None of those accommodated are paying for themselves.

v) Those accommodated have no choice as to their rooms nor as to those with whom they are to share. In most cases they will be sharing rooms with persons with whom they were not previously acquainted.

vi) None of those accommodated in the Bell has anywhere else to live in the United Kingdom.

vii) The Defendant is required to follow the instructions of the Home Office (presumably mediated through CTM) as to the room in which and with whom the asylum seekers are to be placed. The Defendant is expressly prohibited from agreeing to any requests for an upgrade of accommodation.

viii) Those accommodated in the Bell may come and go as they please but any of them who intends to leave for more than one day must obtain prior authorisation from the Home Officer. In addition if any resident is not seen for more than one day the Defendant is required to notify CTM and the Home Office. The Defendant is also required to obtain a signature from each resident each day.

ix) Security staff and a welfare officer are present to protect the residents and to attend to their welfare needs.

x) None of the facilities of the Bell are available for use by non-residents.

In considering the strength of the Claimant’s case on this question I have had regard to Holgate J’s reminder that the Court of Appeal has said that the distinction between hotel and hostel use is a fine one. Although a fine one the distinction is a real one and I come back to the point that the question is not whether the current use is as a hostel but whether there has been a change from use as a hotel. In light of the factors I have just set out there is very considerable force in the contention that there has been such a change here. Mr Coppel’s point that “the Bell is not a hotel for those who are placed there” is a powerful one.

I turn to the question of whether such change of use as there has been was material for the relevant planning purposes. In that regard it is “relevant to consider not only the on- site but also the off-site effects of the character of the use of the land” (Holgate J in Ipswich at [69]. There are a number of factors which support the Claimant’s contention that the change was a material one:

i) The nature of the on-site operation has changed in the extensive ways I have set out above.

ii) The opportunity for use of the Bell by members of the wider community has gone. It no longer provides a resource for dining, receptions, functions, and the like. I do not overlook the fact that such use has been very markedly reduced for a number of years but any scope for such use has totally gone for the duration of the use of the Bell under the contract with CTM.

iii) In addition, it is at least arguable that the contribution which those currently resident at the Bell can make to the local community will be different from that which could have been made by visitors to a hotel. Those currently resident there are all single males who will be resident for a significant period of time; who are resident there without choice; and who ex hypothesi are destitute or at risk of destitution (otherwise the Secretary of State would not be under a duty to accommodate them). Through no fault of theirs the contribution they can make (particularly in the form of the use of local services) and the role they can play in the community is different from that of those visiting a hotel in a particular place for business or leisure purposes.

I remind myself of the limitations of the material before me and of the need for considerable caution in making an assessment of the prospects at the interim stage. Nonetheless, the strength of the Claimant’s contention that there has been a material change of use is such that it operates as a factor in favour of the grant of an injunction in assessing where the balance of convenience falls.”

Each case is to be approached on its own facts

“… the outcome of this application turns on technical issues about the rules of Planning law and on the application of the established principles governing the circumstances in which a court should grant or refuse interim relief. It will be seen from the analysis I set out below that the application of those rules and principles to particular circumstances is acutely fact sensitive.”

The hotel and the Home Office (which sought to participate in this case at a late stage) are reportedly applying for permission to appeal to the Court of Appeal.

Will we now see other local planning authorities seeking to take similar action? Politics, politics. Will they succeed? Whether or not Eyre J’s interim injunction is allowed to stand, we still await the final High Court ruling later this year (assuming the case does not become academic in the meantime).

Simon Ricketts, 20 August 2025

Personal Views, et cetera

Picking Up The Bill: What Are We Now Thinking About Part 3?

As in the Planning and Infrastructure Bill. And as in how much is the bill and who pays it?

There has been much noise over Part 3 of the Planning and Infrastructure Bill (“development and nature recovery”) since the Bill was introduced into Parliament on 11 March 2025. For what it’s worth (maybe not a lot), I’ve been trying to work out what I think.

If you would like a summary of Part 3 as introduced, please see colleague Susie Herbert’s 13 March 2025 guest blog post PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions. I then summarised some of the criticism of Part 3 in my 11 May 2025 blog post, Nature Recovery Position.

On the day that the Lords Committee stage started, 17 July 2025, the Government tabled a series of amendments to Part 3, seeking to strengthen it – see Summary: Planning and Infrastructure Bill, Government Amendments to Part 3 (Lords Committee Stage) (17 July 2025) and the amendments themselves tabled for Committee on 17 September (those tabled by Baroness Taylor relating to clauses 55 to 85).

The amendments had followed discussions with conservation groups and environmental bodies (see e.g. UK government putting pressure on nature groups to drop opposition to planning bill (16 July 2025)). The Office for Environmental Protection welcomed the proposed amendments in a statement published that same day, 17 July 2025:

“The Office for Environmental Protection (OEP) has written to government to welcome its proposed changes to the Planning and Infrastructure Bill.

In advice to government on the Bill in May, the OEP identified a number of areas where it advised environmental protections should be strengthened, while recognising the government’s intent to secure ‘win-win’ outcomes for development and for nature.

Government has now published details of a series of proposed amendments to the Bill.

OEP Chair Dame Glenys Stacey said: “The government’s amendments go a long way towards addressing the issues we raised in our advice.

“I have written to Matthew Pennycook, Minister for Housing and Planning, to acknowledge the significant extent to which government has taken positive steps in response to our advice.

“The Bill sets out government’s intention to strike a different balance between risk and opportunity for nature protection and for development.

“While it is our view that, even after the material amendments the government proposes, the Bill would, in some respects, lower environmental protection on the face of the law, we think that, in the round, the additional safeguards proposed today make government’s intended “win-win” for nature and the economy a more likely prospect.

“Should the Bill receive Royal Assent, the practical implementation of the new measures will be key. We will continue to watch closely and to scrutinise how this significant change in environmental law is implemented.”

That may be said to be a rather limp thumbs-up, but it is certainly a thumbs-up. Given that the Environment Act 2021 gave the OEP the principal objective, in exercising its functions, of contributing to environmental protection and the improvement of the natural environment, and given that its role includes giving advice as to proposed changes in environmental law, and given that the OEP will, I have no doubt, scrutinise implementation every step of the way, one might take some comfort from that position.

However, the amendments haven’t completely quelled concerns. For example, see the statement by CIEEM (i.e. the Chartered Institute of Ecology and Environmental Management) published on 18 July 2025:

“We believe that the Government’s proposed amendments still fall short. They fail to guarantee the vital safeguards nature needs, fail to preserve hard-won protections for species and habitats, and overall, still represent a step backwards for environmental standards in England. And let us not forget that these environmental standards deliver significant economic, health and wellbeing benefits for us all. This battle has not just been about protecting nature for nature’s sake, but also protecting the vital benefits and services that nature provides.

While the proposed improvements to Environmental Delivery Plans (EDPs) are a step in the right direction, major flaws do remain.

Most notable is the glaring absence of the mitigation hierarchy – a cornerstone of current environmental protections. Without it – and the imperative to avoid adverse impacts on biodiversity from occurring in the first place – the Bill opens the door to the devastation of some of our most important natural sites and species. And whilst we note the Ministerial Statement recognises the use of the mitigation hierarchy in EDP development, such Statements are too easily reversed and do not have the strength of primary legislation.

Equally important, is the need for EDPs to guarantee that environmental compensation and enhancement happen before any damage is done – so as to avoid a dangerous nature deficit and to protect vulnerable species from local extinctions.”

One of the Part 3’s most vocal critics is solicitor Alexa Culver, legal counsel at RSK Wilding, a company which uses “habitat restoration as a means of offsetting clients’ biodiversity and carbon impacts while concurrently generating other environmental and social benefits”. Alexa certainly knows her stuff and posted on LinkedIn on 18 July 2025 her “Legal Analysis of Government’s Proposed Concessions to Part 3 of the Planning and Infrastructure Bill”. It is worth a read but in summary her concerns assert the lack of “any legally meaningful protections for habitats and species, or our environment”; that Part 3 would “override any requirement for a “mitigation hierarchy”; that “irreplaceable habitats remain unprotected”, that there “remains no legal liability on any party to deliver compensation measures under an EDP”, creating “unacceptable risks for developers, who may see planning permissions refused because EDPs are failing”, and that in the case of a failing EDP “remedial action may not take place until 10 years after unmitigated harms to nature have occurred”.

The Chancellor possibly didn’t calm the debate by then positing the issue as people in housing need versus snails; Rachel Reeves defends retreat over planning bill as tactical move to speed up reforms (FT, 22 July 2025):

“Chancellor Rachel Reeves has claimed the UK government made a tactical retreat over its flagship planning bill in an attempt to speed it on to the statute book.

Ministers have been accused of watering down provisions in the bill, but Reeves on Tuesday said she hoped that the concessions would help “shave off a couple of months” of parliamentary wrangling in the House of Lords.

“I care more about the young family getting on the housing ladder than I do about protecting some snails,” she told an end-of-term hearing of the Lords economic affairs committee.”

The Lords Committee stage hasn’t yet reached Part 3; this will not be until September.

It’s interesting and, I would say positive, that the OEP posits that the “the additional safeguards proposed … make government’s intended “win-win” for nature and the economy a more likely prospect.” The truth is surely that without these measures we just carry on in a lose-lose position? We’re not really protecting or improving the environment; we’re not building homes.

Bear with me:

First of all, what is the issue which I think that the government is trying to solve by way of Part 3, or at least what I think Part 3 should be focusing on?

There is a lot of abstract talk, but surely at the heart of it all is the specific “appropriate assessment” test in regulation 63 of the Conservation of Habitats and Species Regulations 2017: basically prohibiting an authority from approving “a plan or project that is likely to have a significant effect (either alone or in combination with other plans or projects)” on a European site or a European offshore marine site (i.e. basically a special area of conservation or special protection area) unless it has “ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).” The only exception is almost impossible to meet – if the authority:

“is satisfied that, there being no alternative solutions, the plan or project must be carried out for imperative reasons of overriding public interest (which, subject to paragraph (2), may be of a social or economic nature), it may agree to the plan or project notwithstanding a negative assessment of the implications for the European site or the European offshore marine site (as the case may be).

(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either—

reasons relating to human health, public safety or beneficial consequences of primary importance to the environment; or

any other reasons which the competent authority, having due regard to the opinion of the appropriate authority, considers to be imperative reasons of overriding public interest.”

So (1) we have a test which, unusually, is substantive rather than just procedural – there is no such “pass/fail” test in relation to anything to do with, say, approving projects which may endanger human health or the most precious and unique of heritage assets.

(2) We have a test which has come to be interpreted extremely strictly by way of European and domestic case law – see e.g. the 2018 CJEU Dutch nitrates deposition cases (concerning authorisations for schemes for schemes for agricultural activities in sites protected by the Habitats Directive and where nitrogen deposition levels already exceeded the critical load) and all that has followed.

(3) Largely due to systematic under-investment and mismanagement by successive governments in relation to the regulation of the water industry, of farming processes and of the use of fossil fuels, the ecological integrity of various special areas of conservation and special protection areas is already at or beyond tipping point, leading to the various de facto recommended vetoes on development by way of advice from English Nature: nutrient neutrality requirements in some areas, water neutrality requirements in others (NB the Chancellor’s “homes vs snails” comment is directly relevant to the north Sussex situation), restrictions on additional traffic generating development due to issues of nitrogen deposition in others and in yet others restrictions on homes due to the risk of additional recreational pressure on specific protected sites.

(4) Due to organisational inertia and possibly the lack of prioritised resources, authorities, often working with Natural England and/or the Environment Agency and other bodies, have been slow (at best – sometimes AWOL) in arriving at strategic schemes to mitigate or avoid adverse effects, meaning these vetoes on house building as well as, often, other forms of development, stay in place for years, with only the largest of individual projects able to arrive at a site-specific means of passing the “appropriate assessment” test, often with a consequent hit to viability affecting for instance the level of affordable housing that can be provided. Maybe – local politics – it even suits some local authorities to have those vetoes remaining in place?

I have written about this repeatedly. Stuck record.

29 June 2019 Another Green World: The South Coast Nitrate Crisis

9 October 2021 Development Embargos: Nitrate, Phosphate & Now Water

18 March 2022 New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper)

26 March 2022 More On That Natural England Advice

16 July 2022 Neutrality

All this time, a lose-lose.

The previous government snatched at a solution to the nutrients issue, which I described in my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment – which envisaged simply excluding from the “appropriate assessment” test any “potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors.” This was so much more radical – and environmentally regressive – than anything proposed within Part 3 of the current Bill. Of course, it was decisively defeated in the Lords – see my 16 September 2023 blog post NN No.

We do need a solution! The Conservatives’ solution was never going to work. To the extent that Part 3 would enable the Secretary of State to give Natural England the role of coming up with tested plans, with strategic solutions to secure the recovery of special areas of conservation and special protection areas and to arrive at mechanisms for securing contributions from developers towards those measures – allowing individual developers having diffuse off-site impacts of the ecological condition of those sites to know that the “appropriate assessment” test is not for them to address (unless they want to embark on a site-specific solution) and that they can simply pay their way – I am supportive of Part 3. As OEP concludes, a win-win.

My concerns are probably coming from a different place to some of the opponents to Part 3:

I have deep scepticism as to how quickly or pragmatically these plans will in fact be delivered by Natural England, without a significant ramping-up of the organisation’s capacity and capability. And notwithstanding environmental campaigners’ concerns that Natural England will in some way, without specific legal duties, be soft as to what they require, the reality is surely that, far from for instance not applying the mitigation hierarchy or allowing irreplaceable habitats to be harmed, there is surely as much of a risk that they will “gold plate” what is required.

Is the Government being too ambitious in its framing of Part 3 as enabling EDPs not just to address these specific “diffuse off-site impacts” situations I have focused on in this post, but enabling them to address the ecological value of the particular development site itself, reducing the amount of on-site assessment required? For myself, I do still wonder whether this goes too far and whether, in any event, this will not in practice be the focus of initial EDPs.

Agree or disagree? Planning lawyer blog writers are certainly not a species with any form of protection so please do your worst.

Simon Ricketts, 3 August 2025

Personal views, et cetera

“Government to overhaul planning and licensing rules to make it quicker and easier for new cafes, bars and music venues to open in place of disused shops”

This was the government press release from Saturday (26 July).

“Government to overhaul planning and licensing rules to make it quicker and easier for new cafes, bars and music venues to open in place of disused shops.

New ‘hospitality zones’ will fast-track permissions for alfresco dining, pubs, bars and street parties.

Reforms will also protect long-standing venues from noise complaints by new developments.”

“The reforms will make it easier to convert disused shops into hospitality venues, and protect long-standing pubs, clubs, and music venues from noise complaints by new developments – ensuring the buzz of the high street can thrive without being silenced.

As part of this, the Government will introduce the ‘Agent of Change’ principle into national planning and licensing policy – meaning developers will be responsible for soundproofing their buildings if they choose to build near existing pubs, clubs or music venues.

New dedicated ‘hospitality zones’, will also be introduced where permissions for alfresco dining, street parties and extended opening hours will be fast-tracked – helping to bring vibrancy and footfall back to the high street.

The new National Licensing Policy Framework will streamline and standardise the process for securing planning permission and licences, removing the patchwork of local rules that currently delay or deter small businesses from opening. This means that entrepreneurs looking to turn empty shops into cafes, bars or music venues will face fewer forms, faster decisions, and lower costs.

This transformation is already underway through the High Street Rental Auction Scheme, which gives councils the power to auction off leases for commercial properties that have been vacant for over a year—bringing empty shops back into use and turning them into vibrant community hubs where people can enjoy a meal, drink, or night out.”

We wait to see what all this means in practice for our planning and licensing systems. The agent of change is after all already in the NPPF. Paragraph 200:

“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”

Perhaps there will be a super-charged National Development Management Policy version? Anecdotally, I am still being approached by music venues finding that permissions have been granted for adjoining development without adequate noise mitigation conditions having been applied (most recently a London borough being prepared to consent to judgment in just such a situation). And is the government right to be removing the Theatres Trust as a statutory consultee on relevant planning applications, which is an important check against these sorts of problems arising in relation to some types of venue at least?

For more see my 11 May 2024 blog post Grassroots Music Venues Report/Agent Of Change which in turn references earlier posts.

Now shush, I need to work.

Simon Ricketts, 28 July 2025

Personal views, et cetera

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